Bare court majority sides with federal inmate on questions of habeas procedure

In a 5-4 decision, the Supreme Court on Friday decided in Bowe v. United States two complicated questions concerning federal habeas review.

Federal habeas law allows persons to challenge in federal court the grounds for their detention. It creates separate procedures for state inmates seeking relief from their state convictions in federal court and for federal inmates challenging their federal convictions. Addressing that division, Bowe identified two ways in which the procedures for state and federal inmates differ in federal court.

The case deals with federal inmates who are filing a second or successive motion under 28 U.S.C. § 2255 (the habeas statute for federal inmates) to challenge their convictions and sentences. In Bowe’s case, he filed multiple motions under Section 2255 seeking to invalidate his guilty plea to a firearm offense resulting from his role in a robbery of an armored car in which two guards were shot. But before a federal inmate like Bowe may file a successive Section 2255 motion, the inmate must satisfy certain gatekeeping requirements. The gatekeeping requirements are described in general terms in Section 2255(h), which sets forth two possible grounds for getting relief in a successive Section 2255 motion – newly discovered evidence of innocence or a new rule of constitutional law made retroactive by the Supreme Court – and identifies procedures for pursuing a successive Section 2255 motion. As to the procedures, which were at the heart of the case, Section 2255(h) says that the successive motion “must be certified [approved of] as provided in section 2244 by a panel of the appropriate court of appeals” before these motions may move forward.

The first question in Bowe addressed what happens if the panel of the court of appeals refuses to grant the inmate permission to file a successive motion (because it fails the gatekeeping requirements), which happened in Bowe’s case. Under one provision in Section 2244 – namely, 28 U.S.C. § 2244(b)(3)(E) – the inmate may not seek further review of an appellate panel’s decision before the full court of appeals or the Supreme Court: “The grant or denial of an authorization by a court of appeals to file a second or successive application,” according to Section 2244(b)(3)(E), “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” One issue in Bowe was therefore whether that provision applies to federal inmates seeking to file a successive Section 2255 motion and whether the Supreme Court has jurisdiction to review rulings on such a motion.

Court rejects interpretation that would limit its appellate jurisdiction

To understand the majority’s and dissent’s analyses of whether (or to what extent) Section 2244(b)(3)(E) applies to federal inmates, it is helpful to understand both the rules that apply to state – as opposed to federal – inmates and what the other provisions in Section 2244(b)(3) say. (Warning: it’s about to get complicated.)

To begin with, all of the justices agreed that Section 2244(b)(3)(E) applies to state inmates who file successive petitions seeking federal habeas relief and blocks state inmates from filing petitions for a writ of certiorari (or petitions for rehearing en banc (by the full court)) if a panel on the court of appeals refuses to grant permission to file the successive habeas petition.

The justices also all agreed that the preceding subsections in Section 2244(b)(3)(A) through (D) apply to state and federal inmates. Those provisions require that for an inmate to obtain authorization to file successive petitions from the appropriate federal court of appeals (Section 2244(b)(3)(A)), the authorization: (1) should be decided by a three-judge panel of the court of appeals (Section 2244(b)(3)(B)); (2) that the successive petition must make a prima facie case of satisfying the requirements for a successive habeas petition (Section 2244(b)(3)(C)); and (3) that the appellate panel should decide within 30 days of the inmate’s filing whether to grant or deny permission to file the successive petition (Section 2244(b)(3)(D)). The justices also seemed to agree that the bar on filing en banc petitions in Section 2244(b)(3)(E) applies to both state and federal inmates.

But by a 5-4 vote, the justices held that the clause in Section 2244(b)(3)(E) barring certiorari petitions applies to state inmates only, and federal inmates may thus still seek Supreme Court review if the court of appeal’s panel denies them authorization to file a successive Section 2255 motion.

Justice Sonia Sotomayor’s majority opinion, joined by Chief Justice John Roberts and Justices Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson, began by invoking a principle that Congress must provide a “clear indication” in a statute before removing the Supreme Court’s appellate jurisdiction and it had not done so here. Justice Sotomayor denied “that this clear-indication requirement comes from ‘thin air’” (as asserted in Justice Neil Gorsuch’s dissenting opinion). In addressing the clear-indication rule, the majority focused on a handful of Supreme Court opinions from the last several decades that briefly discuss the subject. Given that the issue implicates fundamental questions about the relationship between Congress and the Supreme Court, this discussion is surprisingly abbreviated, however. The court further invoked avoiding harsh consequences to habeas petitioners, but that rationale neither distinguishes federal from state inmates nor explains how its review of overwhelmingly nonprecedential decisions is particularly helpful to inmates.  

Turning to how to apply the clear-indication rule, the majority did not dispute a variety of features of the habeas statutes that point toward Section 2244(b)(3)(E) applying to federal inmates: the statutory scheme overall limits successive habeas petitions; is designed to make adjudication of applications to file successive motions relatively speedy; and strips Supreme Court review for state inmates of a denial of permission to file a successive habeas petition. Also, closely neighboring provisions in Section 2244(b)(3)(A) though (D) apply to federal inmates.

Against those considerations, Justice Sotomayor relied on not only the clear-indication rule, but also stressed that when Section 2255(h) cross-references Section 2244, it does so by referring to what the court of appeals panel must do, not what the Supreme Court must do.

Gorsuch’s dissent, which Justices Samuel Alito and Clarence Thomas joined in full and which Justice Amy Coney Barrett joined as to the jurisdictional issue, relied on the language and structure of the habeas statutes in arguing that all of Section 2244(b)(3) applies to federal inmates. As Gorsuch summarized, “§2244 bars state prisoners (and governments) from invoking our certiorari jurisdiction to challenge adverse certification decisions. Section 2255 extends that bar to federal prisoners. And because that bar applies here, we lack jurisdiction to decide this case.”

Court rejects that statute barring inmates from refiling the same claim applies to federal inmates

After determining that the court possessed jurisdiction over Bowe’s petition, the justices turned to whether 28 U.S.C. § 2244(b)(1) applies to federal inmates. The majority concluded that it did not.

According to Section 2244(b)(1), “[a] claim presented in a second or successive habeas corpus application under Section 2254 that was presented in a prior application shall be dismissed.” Here, the court emphasized that Section 2244(b)(1) expressly refers to “Section 2254,” which governs only state inmates, not federal ones. Although the court rejected for several reasons that Section 2244(b)(1)’s bar on refiling the same claim applies to federal inmates, the court allowed in footnote 10 that common-law standards, like abuse of the writ, may still preclude “repetitive filings made by federal prisoners in the absence of § 2244(b)(1).” That said, little binding precedent elaborates on when common-law standards bar an inmate from raising a claim again – and the court thus left that issue unresolved.

Implications

Based on the above, the effects of Bowe will likely be limited. Although the case deals with a law stripping the Supreme Court of appellate jurisdiction – a matter of great importance – few other statutes do so. That said, if Congress seeks to strip jurisdiction in the future, it now knows that it must say so clearly.

As to habeas litigation, many practical considerations ought to limit how often the court agrees to review the denial of an application for a successive petition, including the stringent standards in Section 2255(h), statutes of limitations, and mootness, to name just a few. Indeed, for some of these reasons and others, it is unclear whether Bowe will lead to meaningful relief for Bowe himself on remand. Some features of Bowe may nevertheless engender further litigation in the lower courts. For example, parties may dispute whether the court left in place the bar on en banc review in Section 2244(b)(3)(E) for federal inmates. Presumably, the clear-indication rule deals with the Supreme Court’s jurisdiction and therefore does not apply to en banc review in a court of appeals, but defendants will point to ways that Sotomayor’s opinion could be read as stopping short of deciding the issue.

In short, Bowe is unlikely to yield seismic change in habeas litigation, but the breadth of the court’s discussion of habeas law may make it relevant to a variety of habeas issues.